skip navigation
search

CRS Annotated Constitution

Article I -- Table of ContentsPrev | Next

Status of Judicial Decision.—While the highest state court usually has final authority in determining the construction as well as the validity of contracts entered into under the laws of the State, and the national courts will be bound by their decision of such matters, nevertheless, for reasons that are fairly obvious, this rule does not hold when the contract is one whose obligation is alleged to have been impaired by state law.1850 Otherwise, the chal[p.367]lenged state authority could be vindicated through the simple device of a modification or outright nullification by the state court of the contract rights in issue. Similarly, the highest state court usually has final authority in construing state statutes and determining their validity in relation to the state constitution. But this rule too has had to bend to some extent to the Supreme Court’s interpretation of the obligation of contracts clause.1851

Suppose the following situation: (1) a municipality, acting under authority conferred by a state statute, has issued bonds in aid of a railway company; (2) the validity of this statute has been sustained by the highest state court; (3) later the state legislature passes an act to repeal certain taxes to meet the bonds; (4) it is sustained in doing so by a decision of the highest state court holding that the statute authorizing the bonds was unconstitutional ab initio. In such a case the Supreme Court would take an appeal from the state court and would reverse the latter’s decision of unconstitutionality because of its effect in rendering operative the act to repeal the tax.1852

Suppose further, however, that the state court has reversed itself on the question of the constitutionality of the bonds in a suit by a creditor for payment without there having been an act of repeal. In this situation, the Supreme Court would still afford relief if the case is one between citizens of different States, which reaches it via a lower federal court.1853 This is because in cases of this nature the Court formerly felt free to determine questions of fundamental justice for itself. Indeed, in such a case, the Court has apparently in the past regarded itself as free to pass upon the constitutionality of the state law authorizing the bonds even though there has been no prior decision by the highest state court sustaining them, the idea being that contracts entered into simply on the[p.368]faith of the presumed constitutionality of a state statute are entitled to this protection.1854

In other words, in cases of which it has jurisdiction because of diversity of citizenship, the Court has held that the obligation of contracts is capable of impairment by subsequent judicial decisions no less than by subsequent statutes and that it is able to prevent such impairment. In cases, on the other hand, of which it obtains jurisdiction only on the constitutional ground and by appeal from a state court, it has always adhered in terms to the doctrine that the word “laws” as used in Article I, Sec. 10, does not comprehend judicial decisions. Yet even in these cases, it will intervene to protect contracts entered into on the faith of existing decisions from an impairment that is the direct result of a reversal of such decisions, but there must be in the offing, as it were, a statute of some kind—one possibly many years older than the contract rights involved—on which to pin its decision.1855

In 1922, Congress, through an amendment to the Judicial Code, endeavored to extend the reviewing power of the Supreme Court to suits involving ”. . . the validity of a contract wherein it is claimed that a change in the rule of law or construction of statutes by the highest court of a State applicable to such contract would be repugnant to the Constitution of the United States. . . .” This appeared to be an invitation to the Court to say frankly that the obligation of a contract can be impaired as well by a subsequent decision as by a subsequent statute. The Court, however, declined the invitation in an opinion by Chief Justice Taft that reviewed many of the cases covered in the preceding paragraphs.

Dealing with Gelpcke and adherent decisions, Chief Justice Taft said: “These cases were not writs of error to the Supreme Court of a State. They were appeals or writs of error to federal courts where recovery was sought upon municipal or county bonds or some other form of contracts, the validity of which had been sustained by decisions of the Supreme Court of a State prior to their execution, and had been denied by the same court after their issue or making. In such cases the federal courts exercising jurisdiction between citizens of different States held themselves free to decide what the state law was, and to enforce it as laid down by the state Supreme Court before the contracts were made rather than in later decisions. They did not base this conclusion on Article I, Sec. 10, of the Federal Constitution, but on the state law as they determined it,[p.369]which, in diverse citizenship cases, under the third Article of the Federal Constitution they were empowered to do. Burgess v. Seligman, 107 U.S. 20 (1883).”1856 While doubtless this was an available explanation in 1924, the decision in 1938 in Erie Railroad Co. v. Tompkins,1857 so cut down the power of the federal courts to decide diversity of citizenship cases according to their own notions of “general principles of common law” as to raise the question whether the Court will not be required eventually to put Gelpcke and its companions and descendants squarely on the obligation of contracts clause or else abandon them.

“Obligation” Defined.—A contract is analyzable into two elements: the agreement, which comes from the parties, and the obligation, which comes from the law and makes the agreement binding on the parties. The concept of obligation is an importation from the Civil Law and its appearance in the contracts clause is supposed to have been due to James Wilson, a graduate of Scottish universities and a Civilian. Actually, the term as used in the contracts clause has been rendered more or less superfluous by the doctrine that the law in force when a contract is made enters into and comprises a part of the contract itself.1858 Hence, the Court sometimes recognizes the term in its decisions applying the clause, sometimes ignores it. In Sturges v. Crowninshield,1859 Marshall defined “obligation of contract” as “the law which binds the parties to perform their agreement;” but a little later the same year he sets forth the points presented for consideration in Dartmouth College v. Woodward,1860 to be: “1. Is this contract protected by the Constitution of the United States? 2. Is it impaired by the acts under which the defendant holds?”1861 The word “obligation” undoubtedly does carry the implication that the Constitution was intended to protect only executory contracts—i.e., contracts still awaiting performance, but this implication was early rejected for a certain class of contracts, with immensely important result for the clause.

“Impair” Defined.—“The obligations of a contract,” says Chief Justice Hughes for the Court in Home Building & Loan Assn. v. Blaisdell,1862 “are impaired by a law which renders them in[p.370]valid, or releases or extinguishes them . . ., and impairment . . . has been predicated upon laws which without destroying contracts derogate from substantial contractual rights.”1863 But he adds: “Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worthwhile,—a government which retains adequate authority to secure the peace and good order of society. This principle of harmonizing the constitutional prohibition with the necessary residuum of state power has had progressive recognition in the decisions of this Court.”1864 In short, the law from which the obligation stems must be understood to include constitutional law and, moreover a “progressive” constitutional law.1865


Footnotes

1850 Jefferson Branch Bank v. Skelly, 1 Bl. (66 U.S.) 436, 443 (1862); Bridge Proprietors v. Hoboken Co., 1 Wall. (68 U.S.) 116, 145 (1863); Wright v. Nagle, 101 U.S. 791, 793 (1880); McGahey v. Virginia, 135 U.S. 662, 667 (1890); Scott v. McNeal, 154 U.S. 34, 35 (1894); Stearns v. Minnesota, 179 U.S. 223, 232–233 (1900); Coombes v. Getz, 285 U.S. 434, 441 (1932); Atlantic Coast Line R. Co. v. Phillips, 332 U.S. 168, 170 (1947).
1851 McCullough v. Virginia, 172 U.S. 102 (1898); Houston & Texas Central R. Co. v. Texas, 177 U.S. 66, 76, 77 (1900); Hubert v. New Orleans, 215 U.S. 170, 175 (1909); Carondelet Canal Co. v. Louisiana, 233 U.S. 362, 376 (1914); Louisiana Ry. & Nav. Co. v. New Orleans, 235 U.S. 164, 171 (1914).
1852 State Bank of Ohio v. Knoop, 16 How. (57 U.S.) 369 (1854), and Ohio Life Insurance and Trust Co. v. Debolt, 16 How. (57 U.S.) 416 (1854) are the leading cases. See also Jefferson Branch Bank v. Skelly, 1 Bl. (66 U.S.) 436 (1862); Louisiana v. Pilsbury, 105 U.S. 278 (1882); McGahey v. Virginia, 135 U.S. 662 (1890); Mobile & Ohio Railroad v. Tennessee, 153 U.S. 486 (1894); Bacon v. Texas, 163 U.S. 207 (1896); McCullough v. Virginia, 172 U.S. 102 (1898).
1853 Gelpcke v. Dubuque, 1 Wall. (68 U.S.) 175, 206 (1865); Havemayer v. Iowa County, 3 Wall. (70 U.S.) 294 (1866); Thomson v. Lee County, 3 Wall. (70 U.S.) 327 (1866); The City v. Lamson, 9 Wall. (76 U.S.) 477 (1870); Olcott v. The Supervisors, 16 Wall. (83 U.S.) 678 (1873); Taylor v. Ypsilanti, 105 U.S. 60 (1882); Anderson v. Santa Anna, 116 U.S. 356 (1886); Wilkes County v. Coler, 180 U.S. 506 (1901).
1854 Great Southern Hotel Co. v. Jones, 193 U.S. 532, 548 (1904).
1855 Sauer v. New York, 206 U.S. 536 (1907); Muhlker v. New York & Harlem Railroad Co., 197 U.S. 544, 570 (1905).
1856 Tidal Oil Company v. Flanagan, 263 U.S. 444, 450, 451–452 (1924).
1857 304 U.S. 64 (1938).
1858 Walker v. Whitehead, 16 Wall. (83 U.S.) 314 (1873); Wood v. Lovett, 313 U.S. 362, 370 (1941).
1859 4 Wheat. (17 U.S.) 122, 197 (1819); see also Curran v. Arkansas, 15 How. (56 U.S.) 304 (1854).
1860 4 Wheat. (17 U.S.) 518 (1819).
1861 Id., 627.
1862 290 U.S. 398 (1934).
1863 Id., 431.
1864 Id., 435. And see City of El Paso v. Simmons, 379 U.S. 497 (1965).
1865 “The Blaisdell decision represented a realistic appreciation of the fact that ours is an evolving society and that the general words of the contract clause were not intended to reduce the legislative branch of government to helpless impotency.” Justice Black, in Wood v. Lovett, 313 U.S. 362, 383 (1941).
Article I -- Table of ContentsPrev | Next